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CORPORATE COMPLICITY IN INTERNET CENSORSHIP IN CHINA: WHO CARES FOR THE GLOBAL COMPACT OR THE GLOBAL ONLINE FREEDOM ACT?
George Washington International Law Review, The, 2007 by Deva, Surya
Third, the Act further provides that any U.S. business that maintains an Internet content hosting service shall not conduct Internet jamming of a U.S.-supported website in an Internet-restricting country.360 Fourth, U.S. corporations that maintain an Internet content hosting service shall provide the Office of Global Internet Freedom with copies of all data and content that it has blocked or removed at the request of an Internet-restricting country.361
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Finally, any U.S. business that maintains an Internet content hosting service shall not provide to an Internet-restricting country information that personally identifies a particular user of such content hosting service, "except for legitimate foreign law enforcement purposes as determined by the Department of Justice."362 Any person, irrespective of her citizenship status, who feels aggrieved by a violation of this provision may approach an appropriate U.S. district court to seek damages or other suitable relief.363 The Freedom Act, thus, affords a civil remedy to U.S. and non-U.S. citizens alike for what can be considered a breach of the right to privacy by U.S. corporations.
From this brief review one can see that the proposed law seeks to address situations like the role Yahoo!, Microsoft, and Google played (and are playing) in Internet censorship, specifically, the censoring of search results and web content, disclosing information about e-mail account holders, and the blocking of websites. The Act also attempts to overcome the problem of hardware supply by corporations like Cisco by establishing export control and license regulations.364 The proposed regulations apply to any person within the U.S. jurisdiction who may knowingly export any item "to an end user in an Internet-restricting country for the purpose, in whole or in part, of facilitating Internet censorship."365
The Freedom Act provides both civil and criminal penalties if any U.S. business or person violates its provisions.366 Section 206(a)-barring the disclosure of personal identification information of users-is considered most serious in imposing a fine of up to $2,000,000, and an imprisonment of up to five years if the provision is willfully violated or attempted to be violated.367 The violation of other provisions, on the other hand, impose a civil penalty of not more than $10,000, and imprisonment of up to one year for willful violation.368 The Act also seeks to encourage personal responsibility by imposing a fine on any officer, director, employee, etc., of a U.S. business, and requires that the fine not be paid by the business.369
B. Could the Act Succeed where the Global Compact Failed to Deliver?
The Freedom Act, to date, has received a mixed response from different stakeholders.370 All four MNCs that appeared at the U.S. House of Representatives Joint Hearing asked for the intervention of the U.S. government, though indicating-both directly and indirectly-their non-preference for legislation similar to the Freedom Act.371 Even Reporters Without Borders proposed that "a law regulating the activities of Internet companies should only be drafted as a last resort" and that, first, an attempt should be made by Congress to encourage corporations to agree on a code of conduct.372 Human Rights Watch, on the other hand, "believes that barring a dramatic change of behavior by Internet companies doing business in China, legislation will be necessary."373
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